46 W. Va. 509 | W. Va. | 1899
On the 26th of February, 1881, Mary M. McDougal conveyed to T. T. McDougal, of Ritchie County, W. Va., a certain lot in the town of Harrisville, in said county, known as
The first assignment of error claims that the court-erred in overruling the defendant’s demurrer to the plaintiff’s declaration, and raises the question as to whether the-declaration sufficiently alleges the estate of the plaintiff under section 9, chapter 90, Code (page 700), which reads as-follows: “The plaintiff shall also state whether he claims in fee, or for his life, or for the life of another, or for years, specifying such lives or the duration of such term, and when he claims an undivided share or interest, he shall state the same.” The language used in the declaration is: “The .said plaintiff was possessed in a life interest of a certain tract of land, to have and to hold the said tract of land for the term of said plaintiff’s natural life, which life interest is not yet terminated, said plaintiff being yet living.”’
The plaintiff in error claims that the court erred to> his prejudice in giving several instructions to the jury at the instance of the plaintiff and in refusing others that were-prayed for by him. When our attention is directed to these-questions, it is at once apparent that the main question upon which this cáse turns depends upon a proper construction of the deed from the plaintiff, Mary M. McDougal, to T. T. McDougal, and whether by that deed she parted with., her entire estate in the lot of land in controversy, or reserved a life estate therein. If the latter, then T. T. Mc-Dougal, by his deed to the defendant, Musgrave, could convey no other or better title than was vested in himself, but in said last-mentioned deed McDougal also reserves for his. mother her life interest in the premises. This, however,, was not necessary, if such life estate was reserved in said deed to T. T. McDougal, for, as we have stated above, his. conveyance would be subject to the life estate.
It is claimed by counsel for the plaintiff in error that the plaintiff in her deed to T. T. McDougal attempted in the habendum clause, after conveying all of her interest in said lot in the granting clause, to reserve to herself a life interest in and to said lot, which reservation found in the-habendum is repugnant to the premises, and is therefore void. I regard the conclusion of this deed as an exception or reservation of the life estate in the grantor. I, however, do not regard this reservation as being contained in the-habendum. The language of that is: “To have and to hold said real estate and premises, with all the right, title, and interest of the said Mary M. McDougal, unto the said T. T.. McDougal, his heirs and assigns, forever.” At this point the habendum evidently concludes, and what remains is called the “reddendum,” in reference to which Devlin on Deeds (volume 1, section 221) says: “The clause of red-dendum generally follows the habendum-, land is used when anything is to be reserved out of thé property granted.” Strictly speaking, this final clause would be regarded as an exception. In the- section last referred to*
During the trial several instructions were asked for and given at her instance to the jury by the plaintiff, over the objection and exception of the' defendant, and, without setting them forth in full, I will say that instructions Nos. 1 and 2 involve the construction of the deed from plaintiff to T. T. McDougal, and, under the construction I have placed on same, were properly given. By instruction No. 8 the plaintiff asked the court to instruct the jury that: “If they believe from the evidence that prior to and at the time of
It is claimed that the judgment and verdict are informal and insufficient. When the verdict is looked to, we find the jury used this language: “We, the jury, find for the plaintiff the premises in the plaintiff’s declaration mentioned, namely (describing lot No. 68 by metes and bounds). We further find for the plaintiff, Mary M. McDougal, a life estate for the term of her natural life in the tract of land in the plaintiff’s declaration mentioned and described, and we also find the defendant, Charles A. Musgrave, guilty of unlawfully withholding from the plaintiff possession of
Affirmed.